The manufacture, sale, distribution, transportation, and possession of alcoholic beverages in Texas  is governed by the Texas Alcoholic Beverage Code (“TABC Code”), see Tex. Alco. Bev. Code § 1.06. The TABC Code generally preempts municipal regulation of alcohol (See Tex. Alco. Bev. Code § 109.57(b), and  Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)) except where the TABC Code specifically carves out an exception allowing for cities and counties to regulate alcohol. Some of the most common situations in which the TABC allows for the municipal regulation of alcohol are: 

• Sales near a school, church, or hospital by on-premise (except private clubs) and off-premise retailers, see Tex. Alco. Bev. Code § 109.33

• Sales near a day-care center or child care facility by on premises retailers who do not hold a food and beverage certificate, see Tex. Alco. Bev. Code § 109.331

• Sales by on-premise retailers that derive 75% or more of their gross revenue from on-premise sale of alcoholic beverages, see Tex. Alco. Bev. Code § 109.57 (d)(2)

• Sales by on-premise and off-premise retailers regulated by zoning regulations formally enacted before June 11, 1987, see Tex. Alco. Bev. Code § 109.33(c) and Courtney v. City of Sherman, 792 S.W.2d 135, 137-38 (Tex. App. —Dallas 1990, writ denied)

• Possession of open containers or public consumption in a central business district, see Tex. Alco. Bev. Code § 109.35

What this means is that a city or county cannot adopt an ordinance or zoning regulation which solely discriminates against an applicant or TABC permit holder business unless the TABC Code specifically allows for such regulation.  However, a city can enact ordinances that are generally applicable to alcohol and non-alcohol related businesses alike. See, e.g.  Robinson v. City of Longview, 936 S.W.2d 413, 417 (Tex. App.—Tyler 1996, no writ); Banknote Club & Stan’s Boilermaker v. City of Dallas, 608 S.W.2d 716, 718 (Tex. Civ. App.— Dallas 1980, writ ref’d n.r.e.).

Additionally, cities and counties are required to certify a TABC application within 30 days after a prospective applicant requests certification, see Tex. Alco. Bev. Code § 11.37(a) & (b).

It’s not uncommon for city and county officials to try and regulate alcohol businesses in ways not allowed under the TABC Code – usually due to either: 

• A local ordinance that imposes stricter standards than what the TABC Code allows; or
• A local official’s incorrect interpretation of the TABC Code. 

Municipalities will then refuse to certify a TABC application for reasons they’re not allowed to. When this happens, our firm normally first sends an informal letter to the city or county official on behalf of our client explaining TABC preemption and why the local governing body is not allowed to refuse to certify an application. 

If the city or county still refuses to certify our client’s application, we’ll file suit with the county judge to force the municipality to certify. 

See Tex. Alco. Bev. Code § 11.37 (d) below:

(d)  Notwithstanding any other provision of this code, if the county clerk, city secretary, or city clerk certifies that the location or address given in the request is not in a wet area or refuses to issue the certification required by this section, the prospective applicant is entitled to a hearing before the county judge to contest the certification or refusal to certify.  The prospective applicant must submit a written request to the county judge for a hearing under this subsection.  The county judge shall conduct a hearing required by this subsection not later than the 30th day after the date the county judge receives the written request.

If a city or county has either refused to certify your TABC application within 30 days, or you believe your TABC application was incorrectly denied by a municipality, you have the right to a hearing with the local county judge. 

Contact us today to inquire about your city or county TABC certification needs.